Detail Judgment by Supreme Court of Pakistan for Contempt Proceeding Against Prime Minister of Pakistan Released on 8 May 2012

8/2/2019 Detail Judgment by Supreme Court of Pakistan for Contempt Proceeding Against Prime Minister of Pakistan Releas

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IN THE SUPREME COURT OF PAKISTAN(ORIGINAL JURISDICTION)

PRESENT:MR. JUSTICE NASIR-UL-MULKMR. JUSTICE ASIF SAEED KHAN KHOSAMR. JUSTICE SARMAD JALAL OSMANYMR. JUSTICE EJAZ AFZAL KHANMR. JUSTICE IJAZ AHMED CHAUDHRYMR. JUSTICE GULZAR AHMEDMR. JUSTICE MUHAMMAD ATHER SAEED

CRIMI NAL ORIGINAL PETI TI ON NO. 06 OF 2012IN

SUO MOTU CASE NO. 04 OF 20 10(Contempt proceedings against Syed Yousaf RazaGillani, the Prime Minister of Pakistan regardingnon-compliance of this Courts order dated16.12.2009)

For th e Prosecut ion: Mr . Ir fan Qadir, Prosecut or/Attorney-General for Pakistan

For the Respondent : Bar r ister Aitzaz Ahsan, Sr. ASC,assisted by Barrister Gohar Ali Khan,Mr. Shaukat Ali Javid, Mr. ShahidSaeed, Mr. Kashif Malik, Mr. BilalKhokar, Ms. Zunaira Fayyaz, Ms.

Ayesha Malik, Mr. Fahad Usman, Mr.Tayyab Jan, Ch. Babras, Advocateswith Mr . M. S. Khattak , AOR

Dates of Hear ing: 19.01.2012, 01.02.2012, 02.02.2012,

13.02.2012, 22.02.2012, 28.02.2012,

07.03.2012, 08.03.2012, 21.03.2012,

22.03.2012, 26.03.2012, 27.03.2012,

12.04.2012, 13.04.2012, 16.04.2012,

17.04.2012, 18.04.2012, 19.04.2012,

20.04.2012, 24.04.2012 and

26.04.2012


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JUDGMENT

NASIR-UL-MULK, J. These proceedings for

contempt of Court initiated against Syed Yousaf Raza Gillani,

the Prime Minister of Pakistan, emanate from non-compliance

with the directions given by this Court to the Federal

Government in Paragraphs No.177 and 178 in the case of

DR. MOBASHIR HASSAN v FEDERATION OF PAKISTAN ( PLD

2010 SC 265 ) for the revival of the request, withdrawn by

the former Attorney-General, Malik Muhammad Qayyum, to

be a civil party in a money laundering case in Switzerland. To

understand the context in which the said directions were

given by this Court, it is inevitable to state some material

facts.

2. It was in th e fall of 1997 when th e then Attorn ey-

General for Pakistan wrote a letter to the Swiss Authorities

investigating a money laundering case involving commissions

and kickbacks paid by two Swiss Companies, COTECNA &

SGS, in contracts granted to them by the Government of

Pakistan. The Attorney-General requested that the

Government of Pakistan be made a civil party in those

proceedings so th at in th e event th e payments of comm issions

and kickbacks were proved the amount be returned to the

Government of Pakistan being its rightful claimant, with a

further request for mutual legal assistance for the

prosecution of such cases pending in the Courts in Pakistan.

The request was granted. It is not necessary for the purpose


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of the present proceedings to give further details of the

proceedings held in Switzerland. Of relevance is the fact that

the proceedings were still pending when on 15.10.2007 the

President of Pakistan promulgated an Ordinance called The

National Reconciliation Ordinance 2007 (now commonly

referred to as the NRO). The stated purpose for the

promulgation of the Ordinance was to promote national

reconciliation, foster mutual trust and confidence amongst

holders of public office and remove the vestiges of political

vendetta and victimization, to make the election process more

transparent and to amend certain laws for that purpose and

for matters connected therew ith and ancillary thereto;Broadly

speaking, the Ordinance was designed to close investigation

and prosecution of certain categories of cases pending before

any of the investigation agencies and the Courts. Of

significance for the present proceedings is Section 7 of the

Ordinance which reads:-

7. Insertion of new section, Ordinance

XVII I of 1999.- In the said Ordinance, after

section 33E, the following new section shall

be inserted, namely:-

33-F. Withdrawal and termination of

prolonged pending proceedings

initiated prior to 12 th October, 1999.

(1) Notwithstanding any thing

contained in this Ordinance or any

other law for the time being in force,

proceedings under investigation or

pending in any court including a High


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Court and the Supreme Court of

Pakistan initiated by or on a reference

by the National Accountability Bureau

inside or outside Pakistan includingproceedings continued under section

33, requests for mutual assistance

and civil party to proceedings

initiated by the Federal Government

before the 12 th day of October, 1999

against holders of public office stand

withdrawn and terminated with

immediate effect and such holders of

public office shall also not be liable to

any action in future as well under this

Ordinance for acts having been done in

good fait h before the said date:

Provided.

3. The Ordin ance and it s various provisions were

immediately challenged directly before this Court in a number

of petitions filed under Article 184(3) of the Constitution.

While those cases were pending, the then Attorney-General

for Pakistan, Malik Muhammad Qayyum, in the light of the

promu lgati on of NRO, addressed a lett er on 09.03.2008 to th e

Attorney-General of Geneva for withdrawal of proceedings.

The letter has been reproduced in Paragraph No. 124 of the

judgment in DR. MOBASHIR HASSANs case and because of

its relevance to the present proceedings, its contents are

restated:-

Dear Mr. Attorney-General,

We wri te you further to our meeting of 7 April

2008.


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We hereby confirm that the Republic of

Pakistan having not suffered any damage

withdraws in capacity of civil party not only

against Mr. Asif Ali Zardari but alsoagainst Mr. Jens Schlegelmich and any

other third party concerned by these

proceedings. This withdrawal is effective for

the above captioned proceedings as well as

for any other proceedings possibly ini tiated in

Switzerland (national or further to

international judicial assistance). The

Republic of Pakistan thus confirms entirely

the withdrawal of its request of judicial

assistance and its complements, object of the

proceedings CP/ 289/ 97.

Request for mutual assistance made by the

then government, which already stand

withdrawn, was politically motivated.

Contract was awarded to reshipment

inspection companies in good faith in

discharge of official functions by the State

functionaries in accordance w ith rules.

The Republic of Pakistan further confirmshaving withdrawn itself as a damaged party

and apologizes for the inconvenience caused

to the Swiss authori ties.

Your sincerely ,Sd / -

Malik Muhammad QayyumAttorney-General for

Pakistan.

4. On 16.12.2009 th is Cou rt in th e case of DR.

MOBASHIR HASSAN (ibid) declared the NRO void ab initioas


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a whole, particularly, Sections 2, 6 and 7 thereof, being ultra

vires and violative of various Articles of the Constitution. It

further declared that the Ordinance shall be deemed non est

from the day of its promulgation and as a consequence

whereof all steps taken, actions suffered, and all orders

passed by whatever authority, any orders passed by the

Courts of law including the orders of discharge and acquittals

recorded in favour of accused persons, are also declared never

to have existed in the eyes of law and resultantly of no legal

effect. It was further held that all proceedings terminated in

view of Section 7 of NRO, shall stand revived and relegated to

th e statu s of pre-5th of October, 2007 position. As to the letter

written by Malik Muhammad Qayyum, the then Attorney-

General for Pakistan, dated 09.03.2008 to the Attorney-

General of Geneva, reproduced above, it was declared in

Paragraph No. 177 of th e ju dgment:

Since in view of the provisions of Article

100(3) of the Constitution, the Attorney

General for Pakistan could not have suffered

any act not assigned to him by the Federal

Government or not authorized by the said

Government and since no order or authority

had been shown to us under which the then

learned Attorney General namely Malik

Muhammad Qayyum had been authorized to

address communications to various

authorities/ courts in foreign counties

including Switzerland, therefore, such

communications addressed by him


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withdrawing the requests for mutual legal

assistance or abandoning the status of a civil

party in such proceedings abroad or which

had culminated in the termination ofproceedings before the competent fora in

Switzerland or other countries or in

abandonment of the claim of the Government

of Pakistan to huge amounts of allegedly

laundered moneys, are declared to be

unauthorized, unconstitutional and illegal

acts of the said Makik Muhammad Qayyum.

5. As a consequence of the above declaration that

Malik Muhammad Qayyum was never authorized to send

communication to the Attorney-General of Geneva, the Court

gave the following direction in Paragraph No. 178 of the

judgment :-

Since the NRO, 2007 stands declared void

ab initio, therefore, any actions taken or

suffered under the said law are also non est

in law and since the communications

addressed by Malik Muhammad Qayyum to

various foreign fora/ authori ties/ courts

withdrawing the requests earlier made by the

Government of Pakistan for mutual legal

assistance; surrendering the status of civil

party; abandoning the claims to the allegedly

laundered moneys lying in foreign countries

including Switzerland, have also been

declared by us to be unauthorized and illegal

communications and consequently of no legal

effect, therefore, it is declared that the initial

requests for mutual legal assistance; securing

the status of civil party and the claim lodged


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to the allegedly laundered moneys lying in

foreign countries including Switzerland are

declared never to have been withdrawn.

Therefore, the Federal Government andother concerned authorities are ordered

to take immediate steps to seek revival of

th e sa id requests, cla ims and sta tus.

6. Despit e the above clear declaration and categori cal

direction given by this Court on 16.12.2009, the Federal

Government took no steps, whatsoever, towards

implementation of the order. It was not until 29.3.2010 that a

Bench of this Court, headed by the Honble Chief Justice,

while taking suo motu notice of a news item regarding

promotion of one Ahmed Riaz Sheikh an NRO beneficiary as

head of the Economic Crime Wing of the Federal Investigation

Agency (FIA) notice was taken of non-implementation of the

various directions given in DR. MOBASHIR HASSANs case.

The Court, therefore, in strong terms directed compliance

regarding steps for revival of the cases, including those

outside the country.

7. To understand why th e present acti on was in it iated

against the Prime Minister of the country, it is necessary to

mention some of the many orders passed by this Court for the

implementation of the said direction. The matter was again

taken u p by t he Cou rt on 30.03.2010 when th e th en Secretary,

Ministry of Law, Justice & Parliamentary Affairs, Mr. Justice

(Retd) Aqil Mirza, was summoned to the Court and questioned


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about the delay in the implementation. He sought time to

furnish reply and on 31.03.2010 reports were submitted on

behalf of the Ministry of Law, Justice & Parliamentary Affairs

as well as the National Accountability Bureau (NAB). Copies of

the reports were handed over to Mr. Anwar Mansoor Khan, the

then Attorney-General for Pakistan, who sought time to go

through the same and appraise the Court with regard to the

compliance of the judgment in letter and spirit. On 01.04.2010

the Court was informed that a letter was written to the Swiss

Authorities by the Chairman NAB. The Court, however, was of

th e view that a request for being civil/ damaged part y to th e

proceedings in Switzerland shall be made by the Government

of Pakistan, keeping in view the relations in between the

sovereign States and by following the procedure adopted

earlier. The direction was given in the morning and the matter

was adjourned to the afternoon of the same day for a positive

response. However, when the Attorney-General appeared at

1.30 p.m., he revealed that he did his best to have access to

the record of the case lying with Ministry of Law, Justice &

Parliamentary Affairs, but Mr. Babar Awan, Minister of the

Ministry , was not allow ing him to lay hands on the same for one

or the other reason. Upon this statement, the Court

summoned the Secretary, Ministry for Law, Justice &

Parliamentary Affairs, the same day, who informed the Court

that he had received three sealed envelopes from the Foreign

Office, one addressed to him, the other two containing some


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material for the Attorney-General, Switzerland and another

functionary. In the letter addressed to him opinion was sought

regardin g sending of t he envelopes th rough Diplomatic Bags to

Switzerland. That he kept the two envelopes at home in safe

custody and was yet to form an opinion on the matter. Upon

th is disclosure, th e Cou rt observed:-

.we have noted with great pain that,

prima facie, the functionaries of the Law

Department are not really interested to

implement the judgment of this Court,

because no sooner Secretary, Law received

directions of this Court, they should have

contacted the Attorney General as well as to

Chairman, NAB to process the cases, during

course of the day, when now it is already

4.00 pm rather he had left h is house for office

and kept those envelops in safe custody over

there. Be that as it may, we direct the

Secretary, Law to start process now and

complete the same according to law and the

diplomatic relations, following the procedure,

which was followed when the reference wasfiled in 1997 and submit report in this behalf.

In the meantime, learned Attorney General

and Mr. Abid Zubairi, ASC shall remain in

contact with him and provide whatever

assistance they can extend to him.

8. The Court ordered th e Attorney-General for

Pakistan and Mr. Abid Zubairi, learned ASC for the NAB, to

submit report to the Registrar of the Court to the effect that

request for opening of Swiss cases has been forwarded


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accordingly and no lacuna is left therein; No such report was

ever submitted. Rather, Mr. Anwar Mansoor Khan resigned

from the office of the Att orney-General for Pakistan.

9. The mat ter of im plementation of th e ju dgment ,

thereafter, was placed before another Bench of this Court on

29.4.2010. On the said date, the Deputy Attorney-General

appeared on behalf of the Federation, who knew next to

nothing of the case. After a few adjournments when no

progress was in sight, the Secretary, Ministry of Law, Justice

& Parliamentary Affairs, was summoned by the Court for

13.05.2010. By th en, M ou lvi Anwar-u l-Haq, had taken over as

Attorney-General for Pakistan, who informed the Court that

the Secretary was indisposed at Lahore. Instead of turning up

in Court the following day, he sent an application by fax from

Lahore that he could not attend the Court as he had

undergone a surgery and that he has resigned from his office.

After Mr. Anwar Mansoor Khan, this was the second casualty

of th e im plement ation process.

10. In view of the above situ ation when no clear

statement on behalf of the Government was forthcoming, the

Court felt constrained to call the Minister for Law, Justice &

Parliamentary Affairs. The then Minister, Mr. Babar Awan,

appeared on 25.05.2010 and after making detailed

representation, informed the Court that a summary has

already been prepared and presented to the Prime Minister of

Pakistan regarding implementation of the judgment relating to,


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inter-alia, revival of the Governments request to the Swiss

Authorities. He was directed to file concise statement with the

observation that it was clarified that the concise statement

shall specify expressly the steps taken for the implementation of

the afore-mentioned jud gment.

11. With the concise statement filed on behalf of th e

Federal Government, reference was made to the observation

given by the Prime Minister on the Summary presented to him

by the Ministry of Law, Justice & Parliamentary Affairs, and

the same was reproduced in the order of this Court dated

10.06.2010 The Prime Minister has observed that Ministry of

Law, Justice and Parliamentary Affairs has not given any

specific views in the matter, as per Rules of Business, 1973.

However, under the circumstances, the prime Minister has been

pleased to direct that the Law Ministry may continue with the

stance taken in this case. Since the observation of the Prime

Min ister in dicated that th ere was no specific view pr esent ed by

the Ministry of Law, Justice & Parliamentary Affairs, we,

therefore, directed that the very Summary, on which the

observations were made, be placed before the Court. Upon

perusal of the Summary on 11.06.2010 the Court found that

the proposal made to the Prime Minister was not for the

implementation of Paragraph No. 178 of the judgment in DR.

MOBASHIR HASSANs case but rather for its non-

implementation. The Court, therefore, ordered that the said

Summary be totally ignored and a fresh one be submitted by


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the next date of hearing in terms of Paragraph No. 178. We

were, however, disappointed when on the following day, we

were informed by the Attorney-General for Pakistan that no

summary at all was presented to the Prime Minister pursuant

to our orders. Thereafter, these implementation proceedings

were suspended by a larger Bench of this Court, hearing a

petition filed by the Federation for review of the judgment in

DR. MUBASHIR HASSANscase.

12. The review pet it ion was dismissed on 25.11.2011

by a short order, detailed judgment whereof is reported as

FEDERATION OF PAKISTAN v. DR. MUBASHIR HASSAN (PLD

2012 SC 106). The grounds taken up in the review petition

are reproduced in the review judgment, two of which, Nos. XII

and XIV, relate to Paragraph No. 178 of the judgment under

review. In Paragraph No. 11 of the review judgment, reference

was made to the submissions made on behalf of the Federal

Government, including those relating to the said Paragraph

No. 178. The argument, regarding the said Paragraph, was

taken note of in Paragraph No. 14 of the review judgment and

rejected. The short order in the review petition has been

reproduced in the final judgment, which concludes with the

direction that the concerned authorities are hereby directed to

comply with the judgment dated 16.12.2009 in letter and spirit

without any furth er delay.

13. After dismissal of th e review peti ti on,

implementation of the judgment in DR. MOBASHIR HASSANs


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case (ibid), with particular reference to Paragraph No. 178

thereof, was placed before a five-member Bench. The matter

came up for hearing on 3.1.2012 and when the Attorney-

General for Pakistan was asked as to whether any summary

was submitted to the Prime Minister of Pakistan pursuant to

the earlier order of 5.7.2010, the Attorney-General expressed

his ignorance of any such development and, thus, the case

was adjourned to 10.1.2012. When no positive response came

from the Attorney-General for Pakistan, the Court passed a

twelve pages order recapitulating the history of the

implementation process and mentioned six options, besides

others, which the Court could exercise for implementation of

the judgment. The one that was eventually adopted in the first

instance culminating in the present contempt proceedings was

Option No.2 which states:-

Proceedings may be initiated against the

Chief Executive of the Federation, i.e. the

Prime Minister, the Federal Minister for Law,

Justice and Human Rights Division and theFederal Secretary Law, Justice and Human

Rights Division for committing contempt of th is

Court by persistently, obstinately and

contumaciously resisting, fail ing or refusing to

implement or execute in full the directions

issued by this Court in its judgment delivered

in the case of Dr. Mobashir Hassan (supra)..

14. The Attorney-General for Pakistan was pu t on

notice .to address arguments before this Court on the

follow ing date of hearing, after obtain ing instructions from those


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concerned, as to why any of the mentioned options may not be

exercised by the Court. It further issued a general notice that

any person likely to be affected by exercise of the above

mentioned options may appear before this Court on the next

date of hearing and address this Court in the relevant regard so

that he may not be able to complain in future that he had been

condemned by this Court unheard. The Attorney-General was

further directed to inform all such persons mentioned in the

order abou t it s passage and of the next date of hear ing. On t he

suggestion of th e five-member Bench th e Honble Chief Ju stice

enlarged its strength to seven.

15. On 16.1.2012, th e Attorney-General for Pakistan

appeared and informed the Court that the order of 10.1.2012

was communicated to all the relevant persons and the

Authorities mentioned therein, including the President of

Pakistan and the Prime Minister, but he had not received any

instruction to be communicated to the Court. It was in these

circumstances that the Court felt that it was left with no

option but to issue show cause notice to the Respondent, the

Prime Minister of Pakistan, under Article 204 of the

Constitution of the Islamic Republic of Pakistan read with

Section 17 of the Contempt of Court Ordinance (V of 2003), as

to why he shall not be held in contempt of this Court. The

Respondent (Prime Minister of Pakistan) appeared and

personally addressed the Court generally, defended his

inaction by referring to the immunity of the President of


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Pakistan and having acted on the advice tendered to him in

the ordinary course of business. After granting preliminary

hearing to the Respondent in terms of Section 17(3) of the

Ordinance and hearing his learned counsel Barrister Aitzaz

Ahsan, Sr. ASC, we decided that it was in the interest of

just ice to pr oceed against the Respon dent in the con tempt

proceedings and framed the following charge:-

That you, Syed Yousaf Raza Gillani, the

Prime Minister of Pakistan, have willfully

flouted, disregarded and disobeyed the

direction given by this Court in Para 178 in

the case of Dr. Mobashir Hassan v

Federa ti on of Pak istan(PLD 2010 SC 265)

to revive the request by the Government of

Pakistan for mutual legal assistance andstatus of civil party and the claims lodged to

the allegedly laundered moneys lying in

foreign countries, including Switzerland,

which were unauthorizedly withdrawn by

communication by Malik Muhammad

Qayyum, former Attorney General for

Pakistan to the concerned authorities, which

direction you were legally bound to obey and

thereby committed contempt of court within

the meanings of Article 204(2) of the

Constitution of Islamic Republic of Pakistan

1973 read with Section 3 of the Contempt of

Court Ordinance (Ordinance V of 2003),

punishable under Section 5 of the Ordinance

and within the cognizance of this Court. We

hereby direct that you be tried by this Court

on the above said charge.


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16. Moulvi Anwar-u l-Haq, leaned Attorney-General for

Pakistan, was appointed to prosecute the Respondent. On

behalf of the prosecution, the Attorney-General tendered in

evidence documents comprising the judgments in DR.

MOBASHIR HASSANs case as well as in the review petition

and all the orders passed from time to time relating to

implementation of the judgment (Ex.P1 to P40). The

Respondent in his defence produced only one witness, Ms.

Nargis Seth i (D.W.1) who had remain ed t he Principal Secretary

to the Prime Minister during the relevant period. She tendered

in defence two Summaries, Ex.D/ 1 dated 21.5.2010 and

Ex.D/ 2 dated 21.9.2010, along with documents appended with

the Summaries submitted to the Prime Minister. The Prime

Minister opted not to testify on oath but put up his defence

th rough a wr itt en statement unaccompanied by his affidavit.

17. After recordin g of the evidence was completed and

the learned counsel for the defence started his arguments, we

were informed that Maulvi Anwar-ul-Haq had resigned as

Attorney-General for Pakistan and in his place, the Federal

Govern ment appoin ted Mr. Ir fan Qadir who th en took over th e

prosecution.

18. The learned counsel appearin g for th e

Respondent, raised a preliminary objection to the very trial of

contempt by this Bench on the ground that since it initiated

the proceedings suo motu, issued show cause notice and

framed charge, it no longer remained competent to proceed


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with the trial, for to do so would be in violation of the

principle of fair trialnow guaranteed as a fundamental right

under Article 10A incorporated in the Constitution by the

Constitution (Eighteenth Amendment) Act, 2010. For the sake

of facilit y, Art icle 10A reads:

10A. For the determination of his civil

rights and obligations or in any criminal

charge against him a person shall be entitled

to a fair trial and d ue process.

19. The learned counsel main tained th at th e prin ciple

of fair trial must fulfil l two conditions, firstly that no one

shall be condemned unheard and secondly that a person

cannot be a judge in his own cause. Basing his argument on

second condition, it was contended that this Bench having

already formed an opinion, even if prima facie, about the

culpability of the Respondent, it was no longer competent to

proceed with the trial. He clarified that it was not a question

of recusal by the members of the Bench but that of their

disqu alification to sit in tr ial and give ju dgment. Emph asizing

the importance of incorporation of Article 10A in the

Constitution, the learned counsel maintained that it had

brought about a radical change in the scope of the law

relating to determination of civil rights and obligations as well

as criminal charge, ensuring that every person shall be

entitled to fair trial and due process. He pointed out that

whereas many other fundamental rights enshrined in the

Constitution had been made subject to law, such limits have


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not been imposed on the fundamental right under Article

10A. Fur th er drawing distin ction between Article 4 and Arti cle

10A of the Constitution, it was argued that the former

provision entitles every person to be treated in accordance

with the law as it exists, whereas the latter confers a

Constitutional right upon the individuals to a fair trial

regardless of, and notwithstanding, any provision in a sub-

constitutional law. That trial by this Bench will be in accord

with the Contempt of Court Ordinance and would thus fulfill

the requirements of Article 4 but would be void in view of

Article 10A for it offends the principle of fair trial. That wh ile

admitting that the principle of the right to a fair trial was

already well entrenched in our jurisprudence, the learned

counsel argued that Article 10A had graduated the rule to a

higher pedestal of a fundamental right guaranteed by the

Constitution. Conceding that under the ordinary law, there

was an exception to the rule that no man can be a judge in

his own cause, allowing a Judge, who takes suo motu notice

of contempt, to try a contemnor, he contended that the

exception is no longer valid after the introduction of Article

10A.

20. On th e questi on as to wheth er th e provisions of

the Contempt of Court Ordinance, 2003 allowing the trial of

contempt by a Judge, who issues notice and frames charge,

can be challenged in collateral proceedings without a frontal

attack through separate proceedings, the learned counsel


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submitted that if an existing law is void being inconsistent

with any of the fundamental rights, enshrined in the

Constit u ti on, it mu st be ignored, for it becomes unenforceable

in view of Article 8(1) of the Constitution. To substantiate this

argument, reliance was placed upon the cases of FAUJI

FOUNDATION v. SHAMIMUR REHMAN ( PLD 1983 SC 457 ),

SAIYYID ABUL ALA MAUDOODI AND OTHERS v. THE

GOVERNMENT OF WEST PAKISTAN AND OTHERS( PLD 1964

SC 673 ), MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY,

CHIEF JUSTICE OF PAKISTAN v. THE PRESIDENT OF

PAKISTAN ( PLD 2007 SC 578 ), CHIEF JUSTICE OF

PAKISTAN, MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY

v. THE PRESIDENT OF PAKISTAN( PLD 2010 SC 61 ), SINDH

HIGH COURT BAR ASSOCIATION v. FEDERATION OF

PAKISTAN( PLD 2009 SC 879 ), MIR MUHAMMAD IDRIS AND

OTHERS v. FEDERATION OF PAKISTAN( PLD 2011 SC 213 ),

MUHAMMAD MUBEEN-US-SALAM v. FEDERATION OF

PAKISTAN( PLD 200 6 SC 60 2 ).

21. When it was point ed out to th e learned counsel

that he has not referred to any particular provision of the

Contempt of Court Ordinance 2003, being inconsistent with

Article 10A of the Constitution, the learned counsel submitted

that the longstanding practice of the Court allowing a Bench

takin g suo motu notice, to tr y the cont emn or is usage having

the force of law within the meaning of Article 8 of the

Constitution. Reference was made to the definition of the


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word usage, in Blacks Law Dictionary, Whartons Law

Lexicon and Shorter Oxford English Dictionary. Furthermore

th at Art icle 10A is to be read in to the Ordin ance to provide for

an omission therein so as to bring it in conformity with the

said fundamental right. That the stipulation in Section 11(3)

of the Ordinance barring a Judge, who initiates proceedings

for judicial contempt as defined in the Ordinance, to try the

contemnor, shall also be read into Section 12 of the

Ordinance relating to proceedings in case of a civil contempt.

To substanti ate his argum ent s that t hi s Cou rt has in t he past

read into statutes omission made therein on the principle of

casus omissus, the learned counsel cited the cases of AL-

JEHAD TRUSTv.FEDERATION OF PAKISTAN ( PLD 1996 SC

324 ), KHAN ASFANDYAR WALI v. FEDERATION OF

PAKISTAN ( PLD 2001 607 ). He also referred to the interim

order in the case of NADEEM AHMEDv.THE FEDERATION OF

PAKISTAN (Constitution Petition No. 11 of 2010 etc.),

where this Court while referring certain proposals to the

Parliament regarding the new procedure laid down under

Article 175A in the Constitution for the appointment of

Judges in the superior Courts, gave certain directions for

appointments during the interregnum. In the same context

reference was also made to MD. SONAFAR ALI v. THE STATE(

196 9 SCMR 460 ).

22. The learned counsel maint ained th at a

fundamental right can neither be surrendered nor waived. For


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th is propositi on he placed reliance upon GOVERNMENT OF

PAKISTAN v. SYED AKHLAQUE HUSSAIN(PLD 1965 SC 527),

PAKISTAN MUSLIM LEGUE (N) v. FEDERATION OF PAKISTAN

( PLD 2007 SC 642 ) and OLGA TELLIS v. BOMBAY

MUNICIPAL CORPORATION ( AIR 1986 SC 180 ),

COMMISSIONER OF INCOME TAX PATIALA v. M/ S

ROADMASTER INDS. OF INDIA ( AIR 2 000 SC 1401 ). That in

any case the Respondent objected to his trial by this Bench

after the charge was framed when the trial commenced.

Additionally it was argued that due process under Article

10A requires that a person can only be tried by a competent

Court or Tribunal and this Bench being not competent to try

the Respondent, the trial militates against the principle of

due process. Reference in th is context was made to th e cases

of SHARAF FARIDI v. THE FEDERATION OF ISLAMIC

REPUBLIC OF PAKISTAN ( PLD 1989 Kar 404 ),

GOVERNMENT OF BALOCHISTAN v. AZIZULLAH MEMON (

PLD 1993 SC 341 ) and AL-JEHAD TRUST v. FEDERATION

OF PAKISTAN(supra).

23. On th e question as to whether th e tr ial of th e

Respondent by th is Bench wou ld m ili tate against t he principle

of fair trial, the learned counsel sought support from THE

UNIVERSITY OF DACCA v. ZAKIR AHMED ( PLD 1965 SC 90),

THE GOVERNMENT OF MYSORE AND OTHERS v. J. V. BHAT

ETC. ( AIR 1975 SC 596 ), FEDERATION OF PAKISTAN v.

MUHAMMAD AKRAM SHEIKH( PLD 1989 SC 689 ), NAFEESA


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BANO v. CHIEF SETTLEMENT COMMISSIONER, WEST

PAKISTAN ( PLD 1969 Lah 480 ), ANWAR v. THE CROWN

( PLD 1955 FC 185 ), GOVERNMENT OF NWFP v. DR.

HUSSAIN AHMAD HAROON( 20 03 SCMR 10 4 ), MOHAPATRA

& CO AND ANOTHER v. STATE OF ORISSA AND ANOTHER

( 19 85 SCR 91 , 322 AT P. 332), AMARANTH CHOWDHURYv.

BRAITHWAITE AND COMPMANY LTD. & ORS; ( 2002 (2) SCC

290).

24. For th e purpose of disquali fication of a Ju dge due

to pre-t r ial observation m ade by him, reliance was placed u pon

two judgments by the Supreme Court of United States;

MURCHISONS case 349 US 133 (1955) and DANIEL T.

TAYLER IIIv. JOHN P. HAYES41 8 US 488 (1974).

25. The prin ciple of right to fair trial has been

acknowledged and recognized by our Courts since long and is

by now well entrenched in our jurisprudence. The right to a

fair trialundoubtedly means a right to a proper hearing by an

unbiased competent forum. The latter component of a fair

trial is based on the age-old maxim Nemo debet esse judex in

propria sua causa that no man can be a judge in his own

cause. This principle has been further expounded to mean

that a Judge must not hear a case in which he has personal

interest, whether or not his decision is influenced by his

interest, for justice should not only be done but be seen to have

been done .


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26. Starting from the case of THE UNIVERSITY OF

DACCA v. ZAKIR AHMED(ibid) this Court has consistently held

that the principle of natural justice (right of hearing) shall be

read in every statute even if not expressly provided for unless

specifically excluded. The cases cited by the learned counsel

from our own as well as from th e Indian ju ri sdiction have only

reiterated the above well established principle of law. In the

case of NEW JUBILEE INSURANCE COMPANY LTD. v.

NATIONAL BANK OF PAKISTAN ( PLD 1999 SC 1126 ) this

Court has gone to the extent of associating the right to a fair

tr ial with th e fun dament al right of access to ju stice.

27. We agree wit h th e learned cou nsel for th e

Respondent that the inclusion of the principle of right to a fair

trial is now a Constitutionally guaranteed fundamental right

and has been raised to a higher pedestal; consequently a law,

or custom or usage having the force of law, which is

inconsistent with the right to a fair trial would be void by

virtue of Article 8 of the Constitution. However, the question

here is whether trial of the Respondent for contempt by us

having issued a show cause notice and framed the charge,

would violate the Respondents right to a fair trial on the

ground that we have already formed a prima facieopinion in

the matter having initiated suo motu action against the

Respondent . Whil e issuing a show cau se noti ce for cont empt, a

Judge only forms a tentative opinion, which is subject to the

ultimate outcome at the conclusion of the trial. In this regard


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one may refer to the lucid pronouncement by the late Honble

Mr. Justice Hamoodur Rahman, the then Chief Justice of

Pakistan, whi le dealing with a Reference of misconduct against

a Judge of the High Court in THE PRESIDENT v. SHUAKAT ALI

( PLD 19 71 SC 585 ). The Respondent Ju dge had subm it ted a

statement of h is proper ties and assets t o the Supreme Ju dicial

Council under Article 3 of the Judges (Declaration of Assets)

Order, 1969 and the Council, upon scrutiny of the statement,

submitted a report to the President, who then made a

Reference to the Coun cil t o proceed against the Ju dge for gross

misconduct. One of the objections raised by the Judge was

that the Council as constituted was disqualified from hearing

the Reference, as it had earlier scrutinized the declaration of

the assets of the Respondent and was, therefore, bound to be

biased. The objection was rejected on two grounds; firstl y, th at

there was no question or allegation of any bias on any

individual member of the Supreme Judicial Council and the

mere fact that the Council had scrutinized the declaration of

assets was not sufficient to establish the likelihood of bias:

for, if it were so then no Judge who issues a rule in a motion or

issues notice to show cause in any other proceedings or frames

a charge in a trial can ever hear that matter or conduct that

trial. The reason is that a preliminary inquiry intended to

determine whether a prima facie case has been made out or not

is a safeguard against the commencement of wholly

unwarranted final proceedings against a person. To say that a


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charge should be framed against a person amounts to saying

nothing more than that the person should be tried in respect of

it. Anybody who knows the difference between the prima facie

case and its final trial, would reject the objection as

misconceived. The second ground for rejecting the objection

was that of necessity, in that if sustained, there would be no

forum or tribunal to hear the Reference, as the Supreme

Judicial Council had the exclusive jurisdiction to hear the

Reference and all its members had at the preliminary stage

scrutinized the statement of declaration of assets of the Judge.

This ground of necessity was reiterated in the case of

FEDERATION OF PAKISTAN v. MUHAMMAD AKRAM SHEIKH

(ibid) where this Court, while reaffirming that the principle

that no one should be a judge in his own cause and justice

should not only be done but should manifestly appear to have

been done, were very salutary and fully entrenched judicial

pr inciples of hi gh standard, acknowledged th at a Ju dge, when

otherwise disqualified on account of the said principles, may

still sit in th e proceedings if in h is absence th e tr ibunal or t he

Court having exclusive jurisdiction would not be complete.

28. In the case of THE PRESIDENT v. SHUAKAT ALI

(ibid) the Supreme Judicial Council had on its own motion,

after scru tin izing th e statement of the respondent Judge, made

a report to the President. The pronouncement by the then

Chief Justice Hamoodur Rahman provides a complete answer

to the objection of the learned counsel for the defence. The


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learned counsel had tried to draw a distinction between the

exercise of contempt jurisdiction by the Court on its own

motion and on the complaint of a party and it was contended

that it is only in the former case that a Judge would stand

disqualified to try a contemnor. This distinction we do not

consider to be material. In both situations a Judge applies his

mind before issuing notice to the respondent and later is to

form a prima facie opinion after preliminary hearing whether

or not to frame a charge and proceed with the trial. If it is held

that a Judge holding a trial after having formed a prima facie

or tentative opinion on merits of a case violates a litigants

fun dament al ri ght guaranteed u nder Art icle 10A, it would lead

to striking down a number of procedural laws and well

established practices, and may land our judicial system into

confusion and chaos; a Judge, who frames a charge in every

criminal case, will stand debarred from holding trial of the

accused; a Judge hearing a bail matter and forming a tentative

opinion of the prosecution case would then be disqualified to

try the accused; a Judge expressing a prima facie opinion

while deciding a prayer for grant of injunction would become

incompetent to try the suit. There may be scores of other such

situations. Be that as it may, in all such situations the cause

is not personal t o the Ju dge and h e has no personal in terest in

th e matt er t o disqualify him .

29. The except ion recognized by the two ju dgments of

this Court cited above on the ground of necessity to the rule


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that no person shall be a judge in his own cause is also

attracted here. After the show cause notice was issued to the

Respondent, a preliminary hearing was afforded to the

Respondent in terms of Sub-section (3) of Section 17 of the

Contempt of Court Ordinance 2003. Upon conclusion of the

hearing we decided to proceed further and frame a charge

against th e Respondent . This order was challenged t hr ough an

Intra-Court Appeal filed under section 19 of the Ordinance. It

was heard by an eight -member Bench of thi s Cour t, headed by

the Honble Chief Justice. The Appeal was dismissed and the

order by this Bench, forming a prima facieopinion to frame the

charge against the Respondent, was upheld. Like the present,

the Bench hearing the Intra-Court Appeal had also applied its

mind to the existence or otherwise of a prima faciecase. If the

argument of the learned counsel is accepted, all the members

of the Bench hearing the Intra-Court Appeal would be equally

disquali fied, thus, leaving on ly one Honble Ju dge of th is Court

unaffected. No Bench could then be constituted to hear the

cont empt matt er.

30. Out of th e many ju dgments cited by the learned

counsel, in only two, both by the United States Supreme

Court, a Judge was held to be disqualified from trying a

contemnor for his pre-trial conduct. In RE MURCHISON

(supra), a Judge acting as one man Grand Jury, under the

Michigan law, was investigating a crime and during the

in terr ogation, form ed an opin ion t hat a policeman, Mu rchison,


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had perju red him self and th at another person, by th e name of

White, had committed contempt for refusing to answer

questions. Then acting in his judicial capacity he tried

Murchison for contempt in open Court. The matter came up

before the United States Supreme Court and while overturning

the decision of the Michigan State Supreme Court held, by a

majority of 7-3, that on the touchstone of fair trial by a fair

tribunal the trial by the Judge was in violation of the principle

that no man can be a judge in his own cause. This judgment

turns on its own facts where the same person was the

investigator, the complainant and the Judge and the

information that he acquired during secret investigation was

used by him while sitting in his capacity as a Judge. The

information on which the Judge held the contemnor in

contempt was acquired by him not in his judicial but

administrative capacity while investigating a case. That is why

th e Supreme Cou rt observed t hat t he Judge as an investigator

was a material witness and trying the case deprived the

contemnor of cross-examining him on the information that he

had acquir ed dur ing investigation and had used in th e ju dicial

proceedings. The case has no parallel with the one before us.

RE-MURCHISON (supra) does not in any way lay down the

broad proposition that a Judge, who in that capacity forms a

prima facieopinion in a contempt matter, stands disqualified

to try the contemnor. It was in the peculiar circumstances of

th e case th at t he Supreme Court found th at t he petit ioner was


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not given a fair trial by a fair tribunal. Even then three

members of the Court dissented, holding that the contempt

proceedings could be protected on the principle that a Judge

can try a person, who commits contempt in the face of the

Court.

31. In DANIEL T. TAYLER III v. JOHN P. HAYES(ibid) a

trial Judge had warned the defence counsel during

proceedings before the jury in a murder case nine times for

cou rt room condu ct th at he was in contempt. After th e criminal

case was over, the same Judge sentenced the counsel on nine

counts of contempt and on each count, sentenced separately

to run consecutively, totaling almost four and half years. The

mat ter came up before th e United States Supreme Court and i t

was held that on the facts of the case the contempt charge

ought not to have been tried by the Judge; that although there

was no personal attack on the trial Judge but the record

showed that the trial Judge had become embroiled in a

running controversy with the attorney and marked personal

feelings were present on both sides during the trial, and the

critical factor for the recusal being the character of the trial

Judges response to the attorneys misbehaviour during the

trial, not the attorneys conduct alone. This case again does

not i n any way lays down that a Ju dge who forms a prima facie

opinion in a case of contempt is debarred from trying the

contemnor. The Supreme Court of United States considered

the aversion the Judge had developed during the murder trial


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against the contemnor that disqualified him to hold his trial

for contempt.

32. In both th e above cases what prevailed wit h th e

Supreme Court of th e Unit ed States to hold that th e right to a

fair trial was violated, was the pre-trial conduct and not the

pre-t ri al observations of the Ju dge.

33. While incorporatin g Article 10A in th e Consti tu tion

and making the right to a fair trial a fundamental right the

legislature did not define or describe the requisites of a fair

trial. By not defining the term the legislature, perhaps

intended to give it the same meaning as is broadly universally

recognized and embedded in our own jurisprudence. Thus in

order to determine whether the trial of the Respondent by this

Bench violates the condition or the requisite of a fair trial, we

have to fall back on the principles enunciated in this respect.

Neither the learned counsel was able, nor did it come to our

notice, any precedent or juristic opinion, that disqualifies a

Judge, on the touchstone of fair trial, to try a case of which

he had made a preliminary tentative assessment. We may add

th at as regards the members of th is Bench, t he Respondent as

well as the learned counsel, had expressed full confidence.

Indeed none of us has the remotest personal interest in the

matter. The contempt proceedings arose out of non-

implementation of the judgment of this Court. The cause is not

of any member of the Bench but of the Court and in a wider

sense of enforcement of the law. The legislature has already, in


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the Contempt of Court Ordinance 2003, provided a safeguard

against tr ial by a Judge, who may have personal in terest in th e

matter. Sub-section (3) of Section 11 of the Ordinance bars a

Judge, who has initiated proceedings for judicial contempt,

that is scandalizing or personal criticism of the Judge, to try

th e contemnor. The Ju dge is requ ir ed to send th e matt er t o the

Chief Justice, who may himself hear or refer the case to any

other Judge for h earin g.

34. From th e foregoing discussion, it follows th at a

Ju dge, mak ing a prima facieassessment of a contempt matter

whether initiated suo motu or on the application of a party,

does not stand disqualified on the touchstone of the

requirements of a fair trial, from hearing and deciding the

matter. Thus our trial of the Respondent does not infringe

upon the Respondents fundamental right to a fair trial

enshrined in Article 10A of the Constitution. The objection on

this account is, therefore, not sustained.

35. The learned counsel th en took up th e issue of

immunity of the President of Pakistan. He did not invoke the

provisions of Article 248 of the Constitution, 1973, for the

grant of immunity to the President of Pakistan and clarified

th at such immu nit y can be invoked by the President himself.

His arguments on immunity were based on the Customary

Int ern ational Law. He pointed ou t t hat t he present incumbent

of the office of the President of Pakistan was tried for a

criminal offence in a Court in Switzerland, which case now


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stands closed, yet the writing of the letter as directed could

lead to the reopening of the case and trial of the President.

That being head of the State, the President has absolute and

inviolable immunity before all foreign Courts, so long as he is

in the office, from any civil or criminal matter, for acts,

private as well as official, done before or after taking office.

That after leaving the office, he may become liable to such

proceedings. The learned counsel made reference to the

Vienna Convention on Diplomatic Relations, 1961 and Vienna

Convention on Consular Relations, 1963, both of which have

been made part of the law of Pakistan by the Diplomatic and

Consular Privileges Act, 1972 (IX of 1972). Of relevance for

the present case is the Vienna Convention on Diplomatic

Relations, 1961, where although no express provision has

been made for grant of immunity to the Heads of States but it

acknowledges in its Preamble the rules of Customary

International Law and affirms that they shall govern

questions not expressly regulated by the provisions of the

Convention. The learned counsel then referred to the

Memorandum by the Secretariat of the United Nation General

Assembly approved in the 60 th Session of the International

Law Commission, Geneva in the year 2008 titled Immunity

of State Officials from Foreign Criminal Jurisdiction from

which a number of cases and opinions were cited to show

that International as well as domestic Courts have all along

recognized that immunity in civil as well as criminal matters


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are to be extended to Heads of States. Reference in particular

was made to the cases decided by the International Court of

Justice: DEMOCRATIC REPUBLIC OF CONGO v. BELGIUM (

20 02 General List No. 121/ ICJ Reports 200 2 p.3 ) known

as Arrest Warrant case, DJIBOUTI v. FRANCE (ICJ Reports

2008 p.177), QADDAFI v. FRANCE

( International Law Reports, Vol. 125, pp.508-510 ), and

decision of the House of Lords in REGINA v. BOW STREET

METOPOL,ITAN STIPENDIARY MAGISTRATE AND OTHERS, EX

PARTE PINOCHET UGARTE (NO.30) (House of Lords [2000] 1

A.C. 147). In view of the immunity, internationally

recognized, granted to the Heads of States while in office, the

learned counsel maintained that the directions in Paragraph

No. 178 in DR. MOBASHIR HASSAN v. FEDERATION OF

PAKISTAN ( PLD 2010 SC 265 ), can and will be

implemented, but only when the tenure of the present

incumbent of the office to the President expires. The case of

A. M. QURESHI v. UNION OF SOVIET SOCIALIST REPUBLICS

( PLD 1981 SC 377 ) was cited to show that this Court had

also recognized and applied Customary International law by

granting immunity to foreign States. With reference to certain

opinions expressed in Paragraphs No. 215 to 219 of the

Memorandum by the Secretariat of the United Nation General

Assembly, referred to above, it was contended that immunity

is to be extended to the Heads of States whether or not

invoked.


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36. When th e respondent appeared in person in

response to the show cause notice and addressed the Court

briefly, he gave two reasons for not communicating with the

Swiss Authorities for implementation of the direction of this

Court, firstly, that the President of Pakistan enjoys complete

immunity inside and outside Pakistan and, secondly, that he

acted upon the advice tendered to him in the ordinary course

of business. No written reply to the show cause notice was

submitted and the Respondents plea and defence in writing

came only in the written statement filed by him at the close of

evidence. In his statement, the Respondent did not confine

his defence to acting upon the advice tendered to him but

took a categorical stand that the judgment of this Court

cannot be implemented so long as Mr. Asif Ali Zardari

remains the President of Pakistan. This plea of the

Respondent is evident from Paragraphs No. 5, 46 and 79 of

th e wr it ten statement . The relevant parts of th ose Paragraphs

are reproduced:-

5. I may also respectfully point out that this

Honble Bench needs first to hear detailed

arguments on my behalf why Para. 178 of

the judgment in the NRO case is not

implementable at present only, for the

period Mr. Asif Ali Zardari is the incumbent

President of Pakistan..

46. I believe that this is indeed the correct

position in law and fact. As long as a person

is Head of a Sovereign State he has immunity

in both criminal as well as civil jurisdiction of


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all other states under international law. I

believe this immunity to be absolute and

inviolable, even though it persists only during

the tenure of office. It thus vests in the office,not in the person. And it represents the

sovereignty and independence of a country as

well as its sovereign equality with all other

states, howsoever strong and pow erful. I

think it wrong to subject the constitutionally

elected incumbent President of Pakistan to the

authority of a Magistrate in a foreign country.

I think this subjection should be avoided.

79. I therefore, believe tha t I have committed

no contempt and that is a sufficient answ er to

the charge. I also believe that the Sovereign

State of Pakistan cannot, must not and

should notoffer its incumbent Head of State,

Symbol of the Federation (Art. 41), the most

prominent component of Parliament (Art. 50),

and the Supreme Commander of its Armed

Forces (Art. 243) for a criminal trial in the

Court of a foreign Magistrate, during the term

of his office.

37. The above posit ion of the Respondent was, wit h

vehemence, further urged by the learned counsel when

concluding his arguments: that the Respondent is caught

between implementing the judgment of this Court and

maintaining the dignity and respect due to the office of the

President of Pakistan. Thus, in very clear terms, he declared

th at th e Respondent will not pr esent ly im plement th is Court s

direction. Neither in the personal address by the Respondent

before this Court nor in the written statement or in the


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submissions made on his behalf, slightest indication was

given that the Respondent was ready to obey the Courts

order as of now.

38. It is not necessary to examin e or comment upon

the case law cited by the learned counsel for the Respondent

as the plea taken cannot prevail for a number of reasons. The

ground of immunity under the International Law was

expressly taken up by the Federal Government in grounds

(xii) and (xvi) of the Review Petition (Civil Review Petition No.

129 of 2010 in Civil Petition No. 76 of 2007) in DR.

MUBASHIR HASSANScase (ibid), with reference to Paragraph

No. 178 of the judgment. The grounds reproduced in

Paragraph No. 4 of the review judgment reads:-

(xii) that in para 178 of the detailed

judgment, th is Cour t has erred in ordering the

Federal Government and other concerned

authorities to seek revival of the said

requests, claims and statuscontrary to the

pri nciples of I nterna ti ona l La w i n foreign

countries;

(xvi) that the Court fell in error in not

appreciating the functions of the Attorney

General under Article100 of the Constitution

i.e. it is the office of the said incumbent which

is empowered to act or not to act in terms of

its mandate and the letter written by then

Attorney General for Pakistan to Swiss

authorities to withdraw the prosecution was

well within its mandate. The adverse finding

recorded in this regard offended the principle

of audi alteram partem. The observations


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made in paras 178 and 456 are in derogation

to Article 4 of the Constitution as well;

39. The learned counsel appearin g on behalf of th e

Federal Government in the Review, besides others, assailed

Paragraph No. 178 of the judgment under review. The Full

Court of 17 Judges rejected the arguments in Paragraph No.

14 in th e following term s:

14. The Cour t in para 178 of the judgmentmerely held that the communications

addressed by the then Attorney General w ere

unauthorized and the Federal Government

was directed to take steps to seek revival of

the request in that context. Neither during the

hearing of the main case, learned counsel for

the Federal Government placed on record any

instructions of the Federation in this context

nor during the hearing of this review petition,

any such material was laid before this Court

w hich could persuade us to hold tha t the said

communication by the then Attorney General

w as duly authorized to w arrant its review.

40. The argument s regarding immu ni ty under th e

International Law having been urged before the Full Court in

review and not accepted, this seven-member Bench is in no

position to examine the plea. Even otherwise, we are not

sitting in review and, therefore, cannot go beyond what has

been held therein.

41. When confr onted with th e above situ ation, th e

learned counsel submitted that he does not seek review of


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either Paragraph No. 178 or the decision in the review

judgment bu t on ly pr ays for postponement of the

implement ation ti ll t he tenu re of the present incumbent of the

office of the President comes to an end. This contention, if

accepted, would delay the implementation until, at least, the

fall of 2013, when th e present tenu re of t he President expir es,

and would amount to modification of the direction given in

the main as well as in the review judgment in DR. MOBASHIR

HASSANs case (ibid). Paragraph No. 178 concludes with

direction to the Federal Government and other concerned

authorities to take immediate steps to seek revival of the

said request, claims and the status. Similarl y, th e short order

of 25.11.2011 dismissing the review petition carries similar

direction that the concerned authorities are hereby directed to

comply with the judgment dated 16.12.2009 in letter and sprit

without any further dela y. Acceptance of th e Respondent s

plea to delay the implementation of the direction of this Court

would tan tamoun t to review of the clear orders passed in both

the judgments that the implementation is to be carried out

immediately and without delay. This Bench has no power to

modify the ju dgments and delay imp lementation.

42. Additionally, we have noted th at the crim inal

cases before the Swiss Courts were initiated by the Swiss

Authorities and not by the Government of Pakistan, which

later applied to be made civil part y claiming th at t he amoun t,

if any, found to be laundered, be returned to Pakistan, being


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its rightful claimant. This position was not disputed by the

learned counsel. In Paragraph No. 178, the Court had merely

directed that the communication earlier made by the former

Attorney-General, Malik Muhammad Qayyum, for withdrawal

of the claim be withdrawn so that the civil claim of the

Federal Government is revived. The consequences of the

withdrawal of Malik Muhammad Qayyums communication

can only be examined and adjudged by the investigators or

courts in Switzerland, particularly, in view of the controversy

raised on behalf of the Respondent that the cases were closed

on merits, though we have noted that the documents speak

otherwise.

43. Since complete facts of the case in Swit zer land are

not before us, we are in no position to form a definite opinion

about its status when the claim was withdrawn nor indeed

are we competent to give our own findings on the case, even

for the limited purpose of determining the question of

immunity. It is the authorities or the courts in that country

alone which can, in the light of the facts before it, examine

the question of immunity. The immunity can, thus, be

invoked before the relevant authorities in Switzerland and,

going by the arguments of the learned counsel, if the same is

indeed available, it may be granted to the President of

Pakistan wi th ou t invocation.

44. Finally, besides Mr . Asif Ali Zardar i th ere are

others who were also accused in the criminal case in


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Switzerland. This has been impliedly admitted in the written

submissions filed on behalf of the Respondent. By Reference

to Ex.D1/ 3 and D2/ 2, ment ioned in th e Sum mary prepared

for the Prime Minister, it is stated that presently, Mr. Asif Ali

Zardari is the only Pakistani surviving accused in the case,

thereby admitting the indictment of non-Pakistani accused.

However there is express reference to other accused in the

letter of Malik Muhammad Qayyum, withdrawing the claim

stating that the Republic of Pakistan . withdraws in

capacity of civil party not only against Mr. Asif Ali Zardari but

also against Mr. Jens Schlegelmich and any other third

part y concerned by these proceedings. As the claim of the

Government of Pakistan was to retrieve the laundered money

and commissions, whether paid to Pakistani, Swiss or other

foreign nat ionals, the defence of imm u nit y, even if available to

the present President of Pakistan, cannot be pleaded for the

foreign national accused in the case. To their extent too the

Respondent is relu ctant to revive th e claim of t he Govern ment

of Pakistan for no u nderstandable reasons.

45. An ancillary objection was raised by th e learned

counsel to the competence of the Supreme Court to

implement its own judgments in view of clause (2) of Article

187 of the Const it u tion. The Art icle reads;

187(1) [Subject to clause (2) of Article

175, the] Supreme Court shall have power to

issue such directions, orders or decrees as

may be necessary for doing complete justice


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in any case or matter pending before it,

including an order for the purpose of securing

the attendance of any person or the discovery

or production of any document.(2) Any such direction, order or decree

shall be enforceable throughout Pakistan and

shall, where it is to be executed in a Province,

or a territory or an area not forming part of a

Province but within the jurisdiction of the High

Court of the Province, be executed as if it had

been issued by the High Court of that

Province.

(3) If a question arises as to w hich High

Court shall give effect to a direction, order or

decree of the Supreme Court, the decision of

the Supreme Court on the question shall be

final.

The learned counsel submitted that since implementation of

the judgment falls within territorial jurisdiction of the

Islamabad High Court, that Court alone was empowered to

implement this Courts orders or directions. We, however,

understand that the said provision does not, in any manner,

ousts this Courts power to enforce its decisions, particularly

in view of its wide powers under Article 190 of the

Constitution and under Article 204 to punish any person for

disobeying the orders of the Court. Further, clause (1) of

Article 187 of the Constitution only mandates that when the

orders of the Supreme Court are to be enforced within a

Province they shall be executed as if issued by the High Court

of that Province; not that the execution is to be carried out by

the High Court. We may add that this contention was not


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seriously urged and even otherwise we have found it

misconceived.

46. Before taking up th e argum ent s of th e learned

defence counsel on the factual aspects of the case, we may

note here that Moulvi Anwar-ul-Haq, Attorney-General for

Pakistan, who acted as the prosecutor on our orders and

remained associated with this case almost till the end, was

replaced by Mr. Irfan Qadir, during the submissions by the

learned defence counsel. The Attorney-General under Article

100 of the Constitution is appointed by the President on the

advice of the Prime Minister. We found it intriguing that the

Respondent exercising his such powers changed the officer of

the Court prosecuting him. The learned Attorney-General did

not put forth arguments in favour of the prosecution rather

pleaded that there was no evidence, whatsoever, on the basis

of which th e Respondent cou ld be held gu il ty of contempt . We

were, th us, rendered one sided assistance only.

47. The learned Attorney-General in hi s argum ent s

quoted some Paragraphs from Guidelines on the Role of

Prosecutors, Adopted by the Eighth United Nations Congress on

the Prevention of Crime and the Treatment of Offenders,

Havana, Cuba, 27 August to September 1990 to explain his

role as a prosecut or that he need not support th e prosecut ion

and was entitled to make independent assessment of the case

and assist the Court in accordance with law and his

conscience. However, al l h is argum ents were in support of the


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defence and none whatsoever to support the charge against

the Respondent. The learned Attorney-General began by

submitting that there was no law of contempt in force in the

country, in that, the Contempt of Court Ordinance 2003

having lapsed by efflux of time under Article 89 stood

repealed under Article 264 of the Constitution and that

Article 270AA did not protect the said Ordinance. This

question squarely came before this Court in Suo Motu Case

No.1 of 2007 (PLD 2007 SC 688) where it was held that the

Contempt of Court Ordinance (V of 2003) holds the field. This

judgment had been aff irmed by th is Cou rt in JUSTICE

HASNAT AHMED KHAN v FEDERATION OF PAKISTAN ( PLD

2011 SC 680 ). It was pointed out to the learned Attorney-

General that even if there was no sub-constitutional

legislation regulating proceedings of Contempt of Court, this

Court was possessed of constitutional power under Article

204 to punish contemnors, with no restrictions on the

exercise of power including that regarding quantum of

punishment that can be imposed on the contemnor. The

learned Attorney-General went on to criticize parts of the

judgment in DR. MOBASHIR HASSANs case (ibid). We,

however, t old h im th at t he said ju dgment has been upheld by

the Full Court in review and we cannot reopen the questions

already decided. Concluding his arguments, he submitted,

without elaborating, that the evidence on record does not

establish t he charge of cont empt against t he Respondent.


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48. Comin g to the facts of the case, the learned

defence counsel contended that until the Review Petition of

the Federal Government was dismissed on 25.11.2011 there

had been no directions by the Court specifically to the

Respondent. That when the matter of implementation was

taken up after the dismissal of the review petition on

25.11.2011, the Court on 03.01.2012 only enquired of the

Attorney-General for Pakistan as to whether the Summary

was prepared and placed before the Prime Minister in view of

the directions given earlier, but again no direction was given

to the Respondent. As regards the order of 10.01.2012,

wherein the Court specifically mentioned the Prime Minister,

the learned counsel submitted that the same was never

communicated to the Respondent. That the statement of the

Attorney-General before the Court on 16.01.2012 that he

communicated the order of 10.01.2012 to the Prime Minister

is not evidence of th e fact of such comm unication with ou t th e

Attorney-General testifying on oath to that effect. Reliance

was placed on G.S. GIDEON v. THE STATE ( PLD 1963 SC 1 ).

It was contended that the only order specifically and

particularly addressed and communicated to the Respondent

was the one passed on 16.01.2012, requiring him to appear

before the Court. It was thus maintained that prior to the

issuance of show cause notice to the Respondent on

16.01.2012 no other order with direction directly to the

Respondent was brought to his notice. The learned counsel


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made reference to Paragraphs No. 74(i) and 74(v) of the

wri tt en statement filed by th e Respondent.

49. The learned counsel took us th rough various

interim orders in order to show that at the early stages of the

implementation process, directions were given to the officials

of the Ministry of Law and the National Accountability Bureau

(NAB) but never specifically to the Respondent (the Prime

Minister of Pakistan) and that too to prepare proper

summaries for consideration of the Respondent. That the first

Summary was returned by the office of the Prime Minister, as

it did not give any clear opinion and on the second Summary

the Prime Minister directed that the Supreme Court be

informed that in view of the immunity to the President, its

orders cannot be implemented. Referring to the Rules of

Bu siness, 1973, and t he statement of Ms. Nargis Seth i (DW-1)

the then Principal Secretary to the Prime Minister, the

learned counsel contended that the Prime Minister was not to

be blamed for the Summaries if not prepared in conformity

with the directions of this Court. That it was the task of the

then Law Secretary and the Attorney-General for Pakistan to

prepare a proper summary and the contempt, if any, was

comm itt ed by th em and n ot th e Respondent. In support of his

contentions that the Respondent cannot be held personally

responsible for any wrong advice tendered to him in the

ordinary course of business, the learned counsel relied upon

DR. SUBRAMANIAN SWAMY v. DR. MANMOHAN SINGH, a


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judgment of the Supr eme Cou rt of In dia in Civi l Appeal No.

1193 of 2012, decided on 31.01.2012.

50. The learned counsel finally subm itt ed th at since

the contempt proceedings are criminal in nature, entailing

punishment, mens reaof the Respondent is to be established

and it must be proved that his conduct was contumacious.

That it would not be so if his decision is justifiable on

subjective assessment of the information placed before him.

That knowledge of the Respondent of the orders of this Court

cannot be presumed and must be proved. For the purpose of

standard and burden of proof in contempt matters and

whether the conduct of the Respondent was contumacious,

the learned counsel provided us with a long list of cases,

some of which are MRITYUNJOY DAS AND ANOTHER v. SAYED

HASIBUR RAHMAN AND OTHERS 2001 (3) SC Cases 739,

CHHOTU RAM v. URVASHI GULATI AND ANOTHER 2001 (7) SC

Cases 530 , THE ALIGAR MUNICIPAL BOARD AND OTHERS v.

EKKA TONGA MAZDOOR UNION1970 (3) SC Cases 98 , BAHAWAL

v. THE STATE ( PLD 1962 SC 476 ), SMT. KIRAN BEDI AND

JINDER SINGH v. THE COMMITTEE OF INQUIRY AND ANOTHER (

AIR 1989 SC 714 ), ISLAMIC REPUBLIC OF PAKISTAN v.

MUHAMMAD SAEED ( PLD 1961 SC 192 ), ABDUL GHAFOOR v.

MUHAMMAD SHAFI ( PLD 1985 SC 407 ), MIAN MUHAMMAD

NAWAZ SHARIF v. THE STATE(PLD 200 9 SC 814 ).

51. Regardin g lack of knowledge of the Respondent

about directions given by this Court from time to time the

arguments advanced by the learned counsel that he was not


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informed of any such direction given until 16.01.2012, loses

significance in the light of the categorical stand taken by the

Respondent when he appeared before th is Cou rt after issuance

of the show cause notice, as well as in his written statement,

th at he is not for t he tim e being willing and ready to carr y out

the order of this Court. This by itself establishes his

disobedience. Nevertheless we would proceed to examine his

plea of acting on advice and that the orders for the

implementat ion were not specifically dir ected towards him.

52. The defence examined Ms. Nargis Seth i (DW-1), the

then Principal Secretary to the Prime Minister during the

relevant per iod. She produced two Su mmar ies prepared for th e

Prime Minister, dated 21.05.2010 (Ex.D1) and dated

21.09.2010 (Ex. D2) along with all the appended documents

relating to the implementation of the directions given in DR.

MOBASHIR HASSANs case (ibid). In the Summary of

21.05.2010, moved by the Ministry of Law, Justice &

Parliamentary Affairs. The following proposals were placed

before th e Pr ime Min ister for h is approval:

6. In view of above, the Honble Prime

Minister is requested to:

(a) approve the Interim Report

(Annex-A) and the stance taken by the

then Law Secretary and submitted to

the Honble Supreme Court in the form

of points (Annex-B)

(b) approve the opinion of the former

Attorney General at paras 9 and 10 of

Annex-C.


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(c) any other ground which may be

necessary to be taken in the court; and

(d) any other instructions the Honble

Prime Minister may like to give in thisregard.

7. This Summary has the approval of

Minister of Law, Justice and

Parliamentary Affairs.

53. On 24.05.2010 the following approval was given by

th e Prime Min ister (Ex.D1/ 2)

7. The Prime Minister has observed tha t

Ministry of Law, Justice & Parliamentary

Affairs has not given any specific views in the

matter, as per Rules of Business, 1973.

However, under the circumstances, the

Prime Minister has been pleased to directthat the Law Ministry may continue with

the sta nce a lr eady ta k en in t his ca se.

54. The stance refer red to in the above approval taken

by the Ministry of Law in Annex-B to th e Summ ary (Ex.D1/ 3),

abou t t he present i ssue is ment ioned in Paragraphs No. 1 & 2,

reproduced as un der:

1. In connection w ith the question of

revival of the proceedings which were

pending before the Swiss Authorities it has to

be respectfully brought to the kind notice of

this Honble Court that the proceedingspending in Switzerland against, Shaheed

Benazir Bhutto, Mr. Asif Ali Zardari, (now

President of Pakistan) and Begum Nusrat

Bhutto etc. already stand disposed of, not


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only because Malik Muhammad Qayyum the

Ex-Attorney General for Pakistan had applied

for the withdrawal of the application for

mutual assistance and for becoming civilparty but the same had been closed on

merits by the Prosecutor General, Geneva

vide his order dat ed 2 5.08 .20 08.

2. It may be respectfully submitted fur ther

that the evidence had been recorded in the

case and the investigation proceedings were

closed by the Prosecutor General Switzerland

mainly on account of the evidence recorded

by the Swiss authorities. In this view of the

matter, it is submitted that no case

whatsoever is pending which can be

legally revived. This submission is inline

with the legal opinion recorded by Mr. Anwar

Mansoor Khan, former Attorney General for

Pakistan under Article 100(3) of the

Constitution, who after perusal of NAB record

including copies of the orders passed by the

Swiss authorities opined that the case in

Switzerland stood disposed of on merits and

cannot be revived.

55 . The above Paragraphs mention the name of Mr.

Asif Ali Zardar i (now the President of Pakistan) and t he stance

taken is based on the order of the Prosecutor-General, Geneva,

dated 25.08.2008 and the opinion of the then Attorney-

General for Pakistan, Mr. Anwar Mansoor Khan, that the case

in Switzerl and h ad been closed on meri ts and t herefore cann ot

be revived. Since it was time and again stressed that the case

in Switzerland was closed on merits we need to take a look at


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the order of the Prosecutor General, Geneva, and the opinion

of Mr. Anwar Mansoor Khan. The former order is reproduced

in the second Summary of the Ministry of Law (Ex.D2) at page

No.47:

10. As regards Asif Ali Zardari, thePublic

Prosecutor of Pakistan, after having

initially involved Asif Ali Zardari, dropped all

charges against him as well as against Jens

Schlegelmilch, it being noted that the sentence

p

Documents

Detail Judgment by Supreme Court of Pakistan for Contempt Proceeding Against Prime Minister of Pakistan Released on 8 May 2012